Bates & Anor v Chief Constable of the Avon and Somerset Police & Anor [2009] EWHC 942 (Admin)

[2009] EWHC 942 (Admin)

Case No CO/9193/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 08/05/2009

Before

LORD JUSTICE RICHARDS

MR JUSTICE OWEN

Between

CHIEF CONSTABLE OF THE AVON AND SOMERSET POLICEFirst Defendant

BRISTOL MAGISTRATES’ COURTSecond Defendant

Alun Jones QC and Rupert Bowers (instructed by Jeffrey Green Russell) for Claimants

Andrew Waters (instructed by Legal Services Department) for First Defendant

Hearing Hearing dates: 7 April, 2009

Judgment

[1]The claimants are husband and wife. On 9 September 2008 a search warrant relating to their premises at Stone Lodge, Drayton Road, Neville Holt, Market Harborough was issued in the Bristol Magistrates’ Court, the second defendant, on the application of an officer of the Avon and Somerset Constabulary, the first defendant. The warrant, which was issued under section 8 of the Police and Criminal Evidence Act 1984 (“PACE”), was executed on 11 September. The claimants seek an order quashing the search warrant, and a declaration that the entry and search of their premises, and the seizures made in the course of the search, were unlawful.

[2]The first claimant holds himself out as an expert in the forensic examination and analysis of computer based material. He has given evidence on many occasions as an expert witness in civil and criminal cases involving computer based material. On 6 March 2008 he was convicted at Leicester Crown Court on 4 counts of making a false statement and 1 count of perjury. The charges related to untrue statements that he had made over a number of years as to his qualifications. He was sentenced to 6 months’ imprisonment suspended for 2 years and ordered to pay £1,000 towards the prosecution costs.

THE BACKGROUND TO THE APPLICATION

[3]The issue of the search warrant was related to the first claimant’s involvement as a potential expert witness for the defence in the trial on indictment at the Bristol Crown Court of one Graham Harris. Harris was arrested in 2005 and charged with the possession of indecent images of children on his computer. There were repeated preliminary hearings and adjournments of the case largely due to problems faced by the defence in obtaining expert evidence. The trial of Harris eventually took place on 15 September 2008; but there were a number of applications to the Crown Court between March and July 2008 transcripts of which were before this court. On 31 March Mr Richards, counsel instructed for the defendant Harris, applied to HHJ Lambert to break the fixture. The basis for the application was that in November 2007 Harris had written to the first claimant as he was apparently not satisfied with the expert instructed at that stage, a Mr Valler. His solicitors had then written to the first claimant, who replied explaining the position with regard to his forthcoming trial at Leicester Crown Court. Counsel informed the judge that he had given Mr Harris advice as to the first claimant’s position; but that Mr Harris was adamant that he wanted to instruct him as his expert. The learned judge rejected the application to break the fixture.

[4]On 7 April 2008 the matter came before Mr Recorder Curran QC when the defence were again seeking an adjournment. After a lengthy explanation of the history of the case Mr Richards, who again appeared for Harris, referred to the possible involvement of the first claimant as an expert witness saying “I know that would not be acceptable to the Crown either, and I can see why”. He went on to say that those instructing him had contacted another expert, a Mr Dillaway. The learned Recorder adjourned the matter to the following day in order that the position with regard to Mr Dillaway could be established with certainty. On the following day he was informed that the defence had indeed instructed Mr Dillaway, who would need a period of 5 weeks for the preparation of a report. The learned Recorder then gave further directions for the trial.

[5]On 13 May 2008 the matter came before HHJ Darwall-Smith, the case now being listed for trial on 14 July as a consequence of the directions given by Mr Recorder Curran QC. Mr Richards again represented the defendant. At the outset of the hearing Mr Richards told the learned judge that the defendant wanted the first claimant to be his expert, but went on to say “I have given robust advice on that matter and at the momentMr Harris is not wanting to take that advice. The court appointed another expert, a Mr Dillaway. Mr Harris does not think Mr Dillaway is appropriatelyqualified.” The learned judge then observed that whether or not somebody is an expert is a matter of law; and that if the court were to come to the conclusion that an individual was not an expert in the field in which he professed to be, then his evidence would not be admissible. In the event he was not prepared to take the case out of the list. Mr Richards then explained to him that the defendant was not entirely confident that Mr Dillaway had the requisite expertise, and might instruct a further expert.

[6]On 30 May the defence solicitors wrote to the prosecution confirming that they had instructed Chris Magee of Cyber Forensics to provide them with an expert report.

[7]It is necessary at this point to interrupt the summary of the sequence of court hearings. On 3 June Mr Magee visited the Avon & Somerset High-Tec Crime Unit at Bristol police station to collect copies of hard drives, and to conduct tests on the original hardware relating to the Harris case. He was accompanied by the first claimant. In his witness statement filed in support of this application the first claimant gave the following account of the circumstances in which he came to be involved. It was he who had recommended Mr Magee to Mr Harris, and at Mr Harris’s suggestion and with Mr Magee’s agreement, he agreed “to work as an assistant to Mr Magee to consider any question of malicious code which might occur “. When being taken up to the computer room at the police station, Mr Magee introduced him to the officer who accompanied them as “my assistant, Jim Bates,”, and he, the claimant, had laughed, saying “I am the driver”. When the examination of the computer in question was complete, both he and Mr Magee signed an exhibit label, in his case in a legible form. At that stage he did not expect to appear as a witness as his function was “purely to assist with what appeared to be a complex case, and to make my own experience available to Mr Magee for him to confirm and present in his report”.

[8]On the following day, 4 June, there was a further application, this time before HHJ Lambert. He was informed that the defence had finally instructed another expert. No mention was made of the first claimant.

[9]The case of Harris was duly listed for trial on 14 July before Her Honour Judge Hagen. She enquired at the outset whether the defence had yet received the expert report. Mr Richards, again appearing for the defendant, said that he expected it to be ready during the course of the day, but that he had not yet seen it. The case was mentioned again later in the day, when HHJ Hagen was given a fuller account of the background in the course of which there were the following exchanges:

“JUDGE HAGEN: Do you have that defence expert’s report – the first one? MR MOORHOUSE: No. We have been served without one. We have a copy of the agreed areas between the two witnesses, which is available. The defence then instructed a witness, Mr Bates. MR RICHARDS: We did not instruct Bates at all, ever. JUDGE HAGEN: In essence, did the defence expert agree with the Crown? MR MOORHOUSE: Yes, by and large. On all of the critical matters that were in dispute. My learned friend corrects me, that a person called Mr Bates was not instructed. If that was the case then it does give rise to concerns because Mr Bates was a person who was put forward and, as I understand, it given access to indecent images on the belief that he was an expert for the defence. JUDGE HAGEN: Well, what was agreed at that stage with your expert? MR MOORHOUSE: That was Paul Veller, who was the first expert witness instructed by the defence. There was then a person, if I can put it neutrally, which certainly the Crown believed was an expert instructed by the defence, called Mr Bates who was instructed after the defence lost confidence in … Well, he was not instructed but certainly the Crown formed the view that he was. He made enquiries of the computer the week before the last time the matter was due for trial and the report … The primary reason why the last trial was adjourned, Mr Bates was convicted for offences of perjury in relation to evidence he had given as a purported expert in criminal proceedings where he put himself forward with qualifications he did not have in a trial/ And so the defence in effect just before the last trial, were deprived of the potential to call that person as a witness. … MR MOORHOUSE: I raise one further matter as far as Mr McGee is concerned, because it may become relevant in the course of the trial, that Mr McGee visited the police facility with a person who he introduced as his driver, Jim. That person, his driver Jim, it seems started involving himself in the analysis of the computer and it transpired, when the police checked his identity, that Jim is Mr Jim Bates the convicted person who was supposedly put forward as an expert earlier on in the proceedings. JUDGE HAGEN: It rather discredits Mr McGee then? … MR RICHARDS: Well, Mr Bates was never instructed as an expert by the defence. JUDGE HAGEN: How was it he came to be involved then? MR RICHARDS: Because Mr Bates, an expert used extensively by the Crown and by the defence in many hundreds of cases, was convicted for putting forward – JUDGE HAGEN: Was he or was he not instructed by the defence? MR RICHARDS: Well, he was not, no, but the defendant – JUDGE HAGEN: So how was it that he happened to attend to examine the material in this case? MR RICHARDS: It would appear not through any instructions of mine. But the position is that Mr McGee of Cyber Forensics knows of Mr Bates, who is regarded in many ways to be the founding father of computer forensics in this country. JUDGE HAGEN: Despite having been convicted of perjury? MR RICHARDS: Recently, yes. But prior to that he had had some 30 years of experience in the matters. Mr McGee, in the past and indeed to today, often uses him as a consultant and that is how he became involved in these matters today. He would use him as a consultant. He has never been instructed. Once I heard that the … I see there is a letter from my solicitor which purports to say that he was. The instructions are not clear. (conferring)Those instructing me wanted to instruct Mr Bates but he never had access to the material, which was the hard drive, the computer detail which needed to be examined to check that the depositories in evidence was accurate. He never had access to that because, of course, he had this conviction, as I understand it. But when I was aware that he was involved clearly if he was to be the defence expert his value would be almost nil, and that is why I was adamant that he should not be involved in the case. This was the difficulty with the experts we faced once Mr Veller was discarded. ”

MR RICHARDS: Well, he was not, no, but the defendant –

[10]The judge was not prepared to grant a further adjournment and directed that the trial should start on the following day. In the event, and for reasons that are not material to this application, it did not take place until 15 September, when Harris had dispensed with the services of Mr Richards.

[11]But in the meantime reports from both Mr Magee and the first claimant had been served on the prosecution. The report from the first claimant was dated 31 August and served on 1 September. At paragraph 1.8 it said that he appeared in the case at the specific request of the defendant, and at paragraph 6.8 that he was prepared to attend court if required. It also made reference to the making of a copy (a clone) of the relevant hard drive which contained indecent images of children. Having been alerted to the content of the report from the first claimant, it appears that counsel for the prosecution, Mr Moorhouse, asked the police to investigate; and in consequence the police and CPS then gave consideration to whether both the first claimant and Mr Magee should be investigated in respect of the offence of conspiracy to possess indecent images of children. It was against that background that the decision was made by the first defendant to obtain the search warrant the subject of these proceedings.

THE SEARCH WARRANT

[12]The application for the warrant was made by DC Smith and counter-signed by the Senior Investigating Officer, DI Cawsey. It contained a declaration on oath by DC Smith that:

“…there are reasonable grounds for believing: that an indictable offence namely: Conspiracy to Possess Indecent Images of Children has been committed and that there is …on the sets of premises described in the Schedule attached material that is likely to be relevant evidence and be of substantial value to the investigation of the offence and does not consist of or include items subject to legal privilege, excluded material or special procedure material, namely: Clone copy of hard drive, computers, memory sticks, mobile phones, video tape and written correspondence between interested parties.”

[13]The application set out the information and grounds for such belief in the following terms:

“There is an investigation into the Making and Possessing of Child Abuse Images that is fixed for trial at Bristol Crown Court on 15 September 2008. The defendant in this case is Harris. The suspect Bates is a discredited ‘expert’ in computer forensics having been convicted in March 2008 at Leicester Crown Court of Making a False Statement in evidence x 4, this was with regard to qualifications he alleged he held. In April 2008 the defence in the Harris case informed the prosecution that they wanted an additional expert to look at the Harris case and named Bates as their preferred choice. The prosecution at Bristol Crown Court on 7 April 2008 stated Bates was not acceptable to the Crown as an expert witness. On 30 May 2008 the suspect Chris Magee of Cyber Forensics was instructed by the defence as their expert. On 3 June 2008 Magee attended the Avon & Somerset Constabulary High Tech Crime Unit at Kenneth Steel House Bristol to ‘clone’ a hard-drive in the Harris case for examination. Magee was accompanied by another male who was introduced as ‘his driver’. Both men were at the premises for a number of hours and left with a ‘cloned’ hard drive, it wasn’t until the following day that it was discovered that the suspect Bates was the male with Magee. Bates has submitted a 30 page plus report in the Harris case where he states that he has examined the hard drive in the case, at the request of Magee of Cyber Forensics. This hard drive contains a quantity of Child Abuse Images.”

This hard drive contains a quantity of Child Abuse Images.”

[14]The warrant was issued by a justice of the peace and was executed by DC Smith and other officers.

THE CLAIMANTS’ CASE

[15]The claimants challenge the decision to apply for the warrant, the decision to issue the warrant and the manner in which it was executed on six grounds, namely:a. The warrant did not identify so far as practicable the articles to be sought, as required by Section 15(6)(b) of PACE and was oppressively wide in the light of the requirement that only items which there are reasonable grounds for believing will be “relevant evidence” may be seized (Section 8(1)(b) and (4) of PACE):

b. There were no reasonable grounds for believing that the material sought did not include legally privileged material and special procedure material (Section 8(1)(d)):

c. There were no reasonable grounds for believing that the purpose of the search might be frustrated or seriously prejudiced unless a constable arriving at the premises to be searched could secure immediate access to them (Section 8(1)(e) and 8(3)(d)):

d. The entry and search was unlawful because it was not only a search to the extent required for the purpose for which the warrant was issued, and there was excessive search and seizure (Section 15(1) and 16(8)):

e. The warrant should be set aside by reason of a lack of full and frank disclosure to the justice who issued the warrant:

f. There were no reasonable grounds for believing, when the application for the warrant was made, that an indictable offence had been committed (Section 8(1)(a)).

[16]At the beginning of the hearing Mr Alun Jones QC, who appeared for the claimants, made a preliminary application for disclosure of the advice given by prosecuting counsel in the Harris case, Mr Moorhouse, to which I have made reference in paragraph 11 above. The advice was plainly subject to legal professional privilege. Mr Waters, who appeared for the first defendant, informed the court that both the CPS and Mr Moorhouse had given their agreement to the court seeing the advice, but that legal professional privilege had not been waived. That inevitably gave rise to the question of whether the application would have to be adjourned so that the waiver of legal professional privilege could be considered.

[17]But a second preliminary point arose for consideration. It had been submitted by Mr Waters in his skeleton argument that judicial review was not in the circumstances an appropriate remedy given the substantial disputes of fact between the parties and the availability of a claim in private law. That raised the question of whether the appropriate course would be for the claim to be transferred so as to enable it to continue as an ordinary civil claim under CPR Part 7 (see CPR 54.20).

[18]Mr Jones’ response to both questions was that there were two grounds of challenge to the warrant, grounds (b) and (d), in relation to which there were no disputed facts, and that to avoid an adjournment, he was prepared to limit his submissions to those grounds, and to argue them on the evidence filed on behalf of the first defendant, reserving his position as to the remaining grounds.

THE STATUTORY FRAMEWORK

(d) THE STATUTORY FRAMEWORK

[19]The power of a justice of the peace to authorise entry and search of premises is contained in Part II of PACE. The relevant sections are in the following terms: “8. Power of Justice of the Peace to authorise entry and search of premises.(1) If on an application made by a constable a Justice of the Peace is satisfied that there are reasonable grounds for believing:

a. that an indictable offence has been committed; and

b. that there is material on premises … which is likely to be of substantial value (whether by itself or whether with other material) to the investigation of the offence; and

c. that the material is likely to be relevant evidence; and

d. that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and

e. … he may issue a warrant authorising the constable to enter and search the premises.

(2) A constable may seize and retain anything for which a search has been authorised under sub-section (1) above. Sections 10 and 14 contain definitions of the terms ‘items subject to legal privilege’ and ‘special procedure material’. Section 19 provides for the seizure of property other than that identified in the warrant. (1) If on an application made by a constable a Justice of the Peace is satisfied that there are reasonable grounds for believing: a. that an indictable offence has been committed; and b. that there is material on premises … which is likely to be of substantial value (whether by itself or whether with other material) to the investigation of the offence; and c. that the material is likely to be relevant evidence; and d. that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and e. … he may issue a warrant authorising the constable to enter and search the premises. (2) A constable may seize and retain anything for which a search has been authorised under sub-section (1) above.

GROUND (b)

[20]Mr Jones QC submits that neither the officer applying for the warrant nor the justice issuing the warrant could have been satisfied that there were reasonable grounds for believing that the material on the premises in question did not consist of or include items subject to legal professional privilege or special procedure material, and that accordingly by virtue of section 8(1)(d) there was no jurisdiction to issue the warrant. It is therefore necessary to consider the evidence from the officers in some detail. It was DI Cawsey, the Senior Investigating Officer, who authorised the application. She set out the basis upon which the decision was made in her witness statement at paragraphs 8 – 20:

“8. On Friday 5 September 2008 I attended the offices of the Crown Prosecution Service with DS Jones and met John Burgess, a senior member of the Crown Prosecution Service, to discuss the information provided by Brendon Moorhouse in greater detail. The circumstances of the case were unusual and had come about following a breach of security at Avon & Somerset High Tech Crime Unit. The breach of security had occurred when Terence Bates accessed the High Tech Crime Unit with Christopher Magee and either assisted with, or was present when, Mr Magee, the appointed Defence expert in the case of Graham Harris, examined and obtained a clone of the hard drive from Harris’ computer. Mr Bates later submitted a written statement regarding his examination of the computer in which he refers to having examined the clone hard drive. 9. … 10. The Crown Prosecution Service confirmed that Terence Bates was not authorised by the court to act in the role of a defence witness for the case of Graham Harris. A request for Mr Bates to act for the defence had been made and denied on two occasions, possibly due to his criminal conviction, and the Judge had made it clear Mr Bates was not to act as the defence witness and therefore must not have access to the material. I understood there had also been at least one further defence expert who had already examined the Harris computer. MrBates could not therefore have any legitimate reason for being in possession of material relating to the Harris case. 11. The Crown Prosecution Service also confirmed the Crown had a duty to protect material gathered during an investigation and that if hard drives contain indecent images of children, the Police are custodians of that material. Mr Magee was the legally appointed defence expert and had a duty to act with integrity and not compromise the material. I believed there had been a deception, regardless of our lapse in security, by not disclosing the full identity of Mr Bates who was introduced as “Jim the Driver”

. Mr Bates was therefore, in my view, in unlawful possession of copy material potentially distributed by Magee. The Crown Prosecution Service considered it both proportionate and in the public interest to pursue the investigation and subsequent prosecution if the charging threshold was met. 12. The timing of any arrest was significant due to the pending trial of Mr Harris to be heard on 15 September 2008. In order to limit the impact our action would have on the Judicial System, the decision was made to arrest both Bates and Magee on suspicion of conspiracy to possess indecent images of children at the earliest opportunity prior to the Harris trial… 13. I was made aware that Terence Bates was known to the Crown Prosecution Service in London who had prepared an advice document back in 2005 concerning his status and suitability as an expert witness. Guidance was issued to the Crown Prosecution Service at that time, should he be nominated as a defence witness in the future. 14. As Mr Bates was not the authorised legitimatedefence expert, he had no right to possession of any of the Harris case material and should not have been in a position to examine the cloned drive. Mr Magee, the accepted expert, was the only person entitled to examine the material being the party namedin the memorandum of undertaking signed on 2 May 2008 by him and DS Beer. This was signed when arrangements were first made for Mr Magee’s visit to the High Tech Crime Unit. A copy of that memorandum and the subsequent undertaking Mr Magee signed on 3 June 2008 is attached marked “BC/1”. Mr Magee specifically undertook to take and retain personal possession of a copy of the computer material to keep it secure and make no additional copies of the material. 15. I was therefore satisfied and believed there were reasonable grounds for arresting both Mr Magee and Mr Bates on suspicion of conspiracy to possess indecent images of children and for the search of their premises. 16. … 17. On 8 September, DC Smith prepared the necessary Section 8 PACE Warrant applications which I authorisedthe following morning. 18. I agreed that simultaneous warrants and immediate execution was necessary to prevent any opportunity for the loss or disposal of evidence, given that both suspects were IT experts with the means of destroying evidence. Mr Bates had already obtained access to the High Tech Crime Unit by deception and I believed it was highly unlikely that any material would be handed over voluntarily. The premises needed to be secured immediately on arrival to prevent any frustration or prejudice to the investigation. A further warrant was obtained for the workplace of Mr Magee, namely Cyber Forensics. 19. The purpose of the search warrant was firstly to recover the cloned hard drive in the Harris case, secondly to recover the video recorded examination of Harris’ computer at the High Tech Crime Unit and thirdly to locate any electronic communication such as text messages, emails or other written communicationbetween Mr Magee and Mr Bates relating to the arrangements or agreement made to facilitate Mr Bates gaining access to the investigative material in the Harris case. Such communication could potentially be stored on mobiles, computers, USBs or other multi-media equipment. 20. The search warrants were therefore focused solely on obtaining evidence relevant to the suspected conspiracy and the way in which access was obtained to the High Tech Crime Unit in order for Mr Bates to examine and subsequently prepare a report in connection with the Harris case.”

[21]DC Smith said in his witness statement that :

“14. At the time I prepared the Warrant Application forms I was satisfied from the investigations undertaken that Mr Bates was not authorised or permitted to act as an expert in the Harris case. I believe that he could not, therefore, claim any legal privilege over documents relating to that investigation. 15. On arrival at court I handed over all the documentation including the grounds and information to the court staff. I then took the oath before three Magistrates’ and a Clerk and delivered the information as disclosed on the application. 16. I specifically remembered the Magistrates expressing surprise by the actions of the suspects obtaining entry to police premises and being asked if they had done so to distribute child abuse images. I informed them that clearly that our procedure had been lax, allowing them entry without confirming identities but that the deception was a way in which to facilitate Bates accessto the material enabling him to make an examination of the computer hard-drive. If the officers had been told who Bates was, he would not have been granted access to the High-Tech Crime Unit. I informed the Magistrates that the cloned hard-drive contained over 1500 child abuse photographs. 17. I further informed them that Bates had been used by the police as an expert in the early days of Operation Ore.”

[22]It is to be noted that both officers proceeded upon the basis that the first claimant was not ‘authorised or permitted” to act as an expert in the Harris case, and accordingly had no right to be in possession of the ‘Harris’ material, and could not have any claim to legal privilege in relation to such material. Furthermore DI Cawsey asserted at paragraph 10 of her witness statement that “the judge had made it clear that Mr Bates was not to act as a defence witness and therefore must not have access to the material.” There are two points to be made as to that. First it was not open to a judge to direct that the first claimant was not to act as a defence witness, nor had any of the judges to whom applications had been made purported to do so. As His Honour Judge Darwall-Smith observed on 13 May, a judge may direct that the evidence of an individual is not admissible as expert evidence if he or she does not have the requisite expertise. But if they have the relevant expertise (and the first claimant plainly did), then it is a matter for the party to decide whether or not to rely upon the evidence of such a witness. The fact that a witness may or may not have been discredited will go to the weight of the evidence not to its admissibility. Thus it seems clear that both DI Cawsey and DC Smith were proceeding on a false assumption as to the first claimant’s status, whether or not he had in fact been instructed as an expert in the Harris case.

[23]But the challenge contained in ground (b) raises a much narrower point. Mr Jones’ argument was directed solely to the inclusion within the description in the warrant of the material sought of the word “computers”. Its inclusion meant that all computers at the claimants’ premises were liable to be seized under the warrant. Thus in order lawfully to exercise the power to issue the warrant in that form, the justice had to be satisfied that there were reasonable grounds for believing that all the computers at the claimants’ premises did not contain material subject to legal privilege or special procedure material. Unless satisfied that there were reasonable grounds for such belief, there was no jurisdiction to issue the warrant. Mr Jones submitted that the justice could not reasonably have believed that computers at the first claimant’s premises would not contain legally privileged material or special procedure material.

[24]The officer seeking the warrant was under an obligation to make full and frank disclosure in his application, see the judgment of Kennedy LJ sitting in the Divisional Court R (Energy Financing Team Ltd) –v- Bow StreetMagistrates’ Court & Others

[2006] 1WLR 1316

, in which the general conclusions that he drew from the authorities as to an application for and issue of a search warrant included the following at paragraph 24(3):

“If an application is made for a warrant it is the duty of the applicant to give full assistance to the District Judge, and that includes drawing to his or her attention anything that militates against the issue of a warrant.”

The evidence set out above at paragraphs 20 and 21 and the terms of the warrant itself, set out above at paragraph 13, reveal that the material that either was, or ought to have been, drawn to the attention of the justice was to the effect the first claimant was known to be an expert in the analysis of material held on computer, albeit that the officers believed him to have been discredited; secondly that he had acted as an expert for a substantial period of time, in particular for the prosecution in relation to the Operation Ore cases, and thirdly, per DI Cawsey, that he was known to the CPS in London, which had prepared a report concerning his status and suitability as a witness in 2005.

[25]As DI Cawsey said at paragraph 20 of her witness statement, the search warrant was focussed solely on obtaining evidence relevant to the suspected conspiracy involving the Harris material. There is no evidence to suggest that either she or DC Smith, and in consequence the justice, gave any consideration to the question of whether computers at the claimants’ premises might contain material subject to legal privilege or special procedure material relating to other cases in which the first claimant had been involved as an expert witness. Mr Jones QC submitted that had they done so, they could not have been satisfied that there were reasonable grounds for believing that his computers would not contain material subject to legal privilege, or special procedure material.

[26]In response Mr Waters sought to argue that as Operation Ore was in 2002, seven years earlier, the officers would have reasonable grounds for believing that he had had early involvement in such cases as an expert, but had since been discredited, and that there were reasonable grounds to believe that the computers were not going to contain such historic material. That submission did not take account of the evidence from DI Cawsey as to her knowledge of the first claimant’s activities as an expert in 2005. In the course of his submissions Mr Waters also made reference to the belief on the part of the officers that the first claimant had not been instructed as an expert in the Harris case, and had obtained access to the Harris material by deception. Those were matters that are in dispute, but in any event they relate only to the Harris material, and the investigation into the alleged conspiracy between the first claimant and Mr Magee, not to the possible presence of material subject to legal privilege or special procedure material relating to other cases in which the first claimant had been involved as an expert.

[27]He further argued that it was possible that the computers might have contained communications between the first claimant and Mr Magee relevant to the investigation of conspiracy. But as Mr Jones QC observed in the course of argument, specific provision is made for such a situation in sections 50-52 of the Criminal Justice and Police Act 2001 which contain additional powers of seizure from premises. They provide that where a person lawfully on premises finds anything that he has reasonable grounds for believing may contain something for which he is authorised to search, he may seize it, provided that he satisfies certain requirements that it is not necessary to set out for present purposes. In this case it would have been open to the officers to have sought to invoke their powers to seize the computers under sections 50-52, but they did not do so.

[28]I consider that Mr Jones’ submission is well founded. Given their knowledge of the first claimant’s role as an expert witness over many years, I do not consider that either the officers or the justice could have been satisfied that there were reasonable grounds for believing that the first claimants’ computers would not contain material subject to legal privilege or special procedure material. It seems clear that they did not address the question. Had they done so, they must have come to the conclusion that the first claimant’s computers might contain such material. In those circumstances there was a means by which the police could have examined the computers for material relevant to their investigation, namely by exercising the power of seizure contained in sections 50-52 of the Criminal Justice and Police Act 2001, but as I have already observed, they did not do so. Accordingly in my judgment there was no jurisdiction to issue the warrant in the form in which it was sought and issued. Accordingly I would quash the warrant on this ground, and grant the relief sought, namely a declaration that the entry and search of the premises, and the seizures made in the course of the search, were unlawful.

GROUND (d)

[29]Ground (d) is directed at the extension of the search. DI Cawsey gave evidence in her witness statement that she authorised the extension of the search under section 19 when it was reported to her that a large number of computers and hard discs had been found in the course of execution of the warrant. But if the warrant was not lawfully issued, it could not have been extended under section 19; and it follows that the seizure of the materials the subject of the purported extension was also unlawful.

[30]I agree.